The Ethics Of… Prison

If there’s one thing you can rely on in life, it’s the enthusiasm a sizable part of society has for prisons. Someone robbed a bank? Lock em up! Someone killed a guy? Lock em up! Mugger? Jail! Drug dealer? Prison! Fraudster? Lock em up and throw away the key! And paedophiles? Chuck them into jail and let the other prisoners take them apart.

It’s hardly surprising that we’re not really keen on criminals. Crime after all is a violation of one of the most fundamental institution of our entire lives – the law. From our first childhood lessons about crossing the road and stranger-danger, right through to the responsibilities and vices of adulthood the law is always there, defining the limits of what we can and cannot do, what we can expect from other people and what we can get away with. So deep does our trust in the law run that I have often found it almost impossible for some people to make a distinction between what is right (that is to say, ethically justifiable) and what is legal. As such it makes a lot of sense that we want to come down hard on those that violate these rules, threatening everything we took for granted about our safety and security in the process. We want it very clear – screw with the community, breach our trust, prove yourself unworthy with your liberty, and you go to prison where you can’t hurt anyone anymore.

But it goes deeper than that, doesn’t it? As simple as it would be to view prisons as simply a place to segregate the untrustworthy from society, when someone as vile as Adrian Bayley rapes and murders Jill Meagher simply because she dared to walk down the street at night, then we don’t just want to segregate them for safeties sake, do we? No, we want that bastard to suffer. We want him to pine away behind bars for the rest of his natural life, wishing every single day that he had never even thought of doing that awful thing that he did. We want him to hurt as badly as he made his victim, her friends and her family hurt. And we want anyone else with even the faintest chance of committing the same crimes to look at his ruined life and think twice about it.

This sentiment isn’t just limited to the most serious crimes either – poll any group of parents and it’s a fair bet they’ll take a similar attitude to thugs who start fights in bars, drug dealers and addicts, drunk drivers and anyone else that might pose a threat (or a temptation) to their children. And according to a recent and extremely disturbing poll, more than 60% of Australians think that indefinite detention without trial is not only acceptable, but doesn’t go far enough for those that have the gall to attempt to seek asylum here by boat (though for some reason we don’t seem to mind too much when they do it by plane). After all, it’s argued, if you let some in then you’re telling all the rest that it’s possible. Unless we send a clear message that crime does not pay, they’ll think they can get away with it. Unless we teach criminals a lesson, how will they ever learn?

It’s a powerful chain of reasoning, built on the solid foundations of the traditional family; the parents set the rules and the children follow them. Break them and you get a smack until you learn better.

Unfortunately for this clear and simple ideal, it suffers from one tiny flaw: it doesn’t work. At all.

Let me be totally clear on this point. When I say ‘it doesn’t work’, this is no touchy-feely appeal to be ‘nice’, nor a sweeping, naive judgement that violence is never justified. No, when I say ‘it doesn’t work’ what I mean is that punishment, whether in the form of imprisonment or a spanking, is extremely unsuccessful in improving the behaviour of the person being punished.

Because that’s the point, isn’t it? If a person commits a crime, surely our goal is to achieve the best possible outcome that we can, where no further crime will ever be committed and the criminal can repay their debt to society by working towards its improvement. Not only does punishing them to make a point and send a message fail to do this, it actually makes things worse.

Remember the last time you broke the speed limit? You knew it was illegal, and you knew that that law existed to prevent accidents – accidents that might kill or cripple yourself and others. But you did it anyway. Why? Didn’t you already know it was wrong? Didn’t you already know you might be punished if you were caught? But yet you did it anyway. Why? Because you did not believe that you were at any risk of causing an accident or being caught. Not you! Nah, you’re not like the thousands upon thousands of other people who thought exactly the same way and still crashed or were caught. You’re the exception. And if you do get stung by a speed camera, how would you react? You’d be pissed, wouldn’t you? Perhaps you’d swear a bit at the police for being so vigilant, or write to the nearest tabloid rag about ‘revenue raising’. Maybe you’d even stop speeding when you drive…at least until you feel confident enough that there’s no cops around again.

This is exactly – EXACTLY – how every criminal feels when they break the law. Sure there’s a bit of a jump between speeding and say, robbing a bank, but the principle remains the same – no one who breaks the law expects to be caught. Who in their right mind would even think about it if they expected to be caught? Who could raise the courage or calculate it as worth it if they even admitted to the possibility in their mind that they might not gain anything from their crime, but lose 10-15 years of their life behind bars? What threat is punishment to someone who believes right down to their bones that they will never be caught?

But what about when they do get caught? Am I seriously suggesting that we shouldn’t punish Adrian Bayley for the horrific crimes he committed? Doesn’t he deserve to suffer for the rest of his life in prison? Of course he does. Mr Bayley deserves more horror to be inflicted on him than (most) human minds are capable of imagining, but the question isn’t what he deserves. The question is what is the best possible outcome we can achieve, and torturing Bayley doesn’t achieve squat. In fact, it just makes the situation worse. There are precious few people who are willing to commit a crime and also willing to take full responsibility for their actions, and just as we curse the police when they fine us for speeding, so to does the convict curse the police, the judge, the prison wardens and the victims for their imprisonment – anyone but themselves.

This is all fairly counter-intuative though, isn’t it? We all remember that time when we were kids where we did something extra naughty, got smacked for our trouble and never did that thing again. So why wouldn’t that logic apply here? Well it turns out it doesn’t even work when we were children a child. Study after study after study (nicely summarised by this meta-study of 26 individuals report) has shown the same thing – physical discipline not only fails to improve the behaviours of children (apart from immediate, short-term compliance), but actually makes them more likely to be violent themselves as they age. Sure we all remember that spank as a kid, but as any child can tell you, nothing in the world was more effective in making you regret your decisions than that look of disappointment your parents gave you when you really screwed up.

There are exceptions to these rule to be sure. We all know of someone who was scared straight after a run-in with the cops, or who turned their life around after prison. But you know what works far, far better than prison in bringing about that best-possible outcome I keep talking about? All the ‘soft’ options that everyone likes to sneer at; suspended sentences that give low-level offenders a second chance but twice the risk, Intensive Corrections Orders that keep addicts out of prison provided they get treatment, Community Based Orders that replace sitting around in prison with useful community work that make criminals do something productive, and a host of rehabilitation programs inside prisons that prepare criminals to be productive citizens when they leave, rather than just going back to what they know.

Sounds nice on paper, but how do I know these methods work than a good old-fashioned smack upside the head? Because as these ‘soft’ methods have become more and more popular over history, the crime rate has dropped – and now at a time when we use punishment less than ever before in western history, we have a crime rate that is so incredibly low compared to previous eras that we’ve come to think of a few drunken fist-fights in the city as an ‘epidemic of crime’.

Compare this to the good old days of England in the 1700, when we were really tough on crime. Corporal punishment was the undisputed norm, and such heinous crimes as ‘robbing a rabbit warren’, ‘cutting down a tree’, and ‘stealing five shillings’ could earn you the death penalty. Surely with punishments like these looming over their heads the citizens of old England never dreamed of violating the law? In reality however, crime was so incredibly common that England actually decided to deport as many as 300,000 convicts to its colonies in the USA, Australia and India. That is approximately 10 times more prisoners deported than there are currently in Australian jails today, not even considering those that remained in England.

Yeah fine, I’ve made my point. But if things are so wonderful now thanks to our lovey-dovey approach to dealing with criminals, why even bother with this article? Because we’re currently looking at a rather nasty backslide, thanks as always to god damn politicians and their enthusiasm for ‘donations’. In fairness, what politicians could ignore the incredible power of the law and order vote? It reaches right down into the fear crime inspires, right into the suffering of the victims and the very primal desire for revenge and turns these emotions into political gold. We saw that when the current Victorian government rode into a surprise election win in 2010, promising to put armed guards on Victorian trains (guards which to date have served the cause gloriously by fining people without tickets and accidentally shooting a floor one time), and we’re currently seeing it in the ongoing campaign for tougher sentencing by the community and a variety of right-wing commentators.

I totally understand the primal need for someone who has had their friend murdered to see their attacker suffer. It’s one of the most primal of all motivations; to protect those you love and kill those that threaten them. But what does it actually achieve? Inflicting harm on the criminal will do nothing whatsoever to help the victim, costs valuable resources for no benefit to society, and as discussed above, is more likely to make the criminal re-offend than see the error in their ways.

Secondly, and far more terrifying, is the scourge of for-profit prisons that has swept the USA and begun to establish itself in Australia. On the face of it, these arrangements seem fairly standard – the government doesn’t want to pay to run prisons, so they farm it out to a private company which does it more efficiently. The problem comes when that company realises that, since they naturally get paid more for housing more prisoners, it now has an enormous economic incentive to lean on government to increase the number of prisoners coming their way. Maybe by making more things illegal, or by mandatory sentencing, or perhaps longer, tougher sentences for convicted criminals. If any of these sound familiar, it’s probably because they’ve all occurred to some degree in Australia in the last 15 years. Remember the Victorian knife ban? Or the debate over mandatory sentencing in the Western Australia and the Northern Territory? And the fact that the current campaign for tougher sentencing gets such a suspicious amount of airtime, from the very same people so supportive of the ridiculous (but very profitable) climate change denial movement?

Naturally nothing fast and tight can be proven about the lobbying efforts of the prison industry, since naturally all such lobby meetings are not open to the public, but the endless, costly and incredibly unsuccessful War on Drugs in the USA stands as a massive beacon on their influence – the fact that the average sentence for a first time, non-violent drug offender can be longer than for a rapist is as bizarre as it is terrifying.

This article is not an apology for crime. Criminals threaten not only their direct victims, but attack the very foundations of trust that underline a successful society, and as such cannot, must not be tolerated. But there is a massive distinction between ensuring every criminal is accountable for their actions and punishing those criminals to teach them a lesson, send a message to others, or just make ourselves feel better. Criminal justice is not about these things, it is about ensuring that we achieve the best possible outcome for everyone involved. As bizarre as it might seem on paper, history has taught us this is achieved through constructive, comprehensive approaches that don’t take pity on criminals, but do seek to understand them. With this, as with so many questions of ethics and justice we must ask ourselves what is the right thing to do; ignore our emotions and protect the progress we’ve made? Or to indulge our desire for revenge and sacrifice gains it’s taken us so long to achieve?

11 thoughts on “The Ethics Of… Prison

  1. An insightful article on criminal punishment and what exactly is wrong with such a notion. I agree with you wholeheartedly that criminal justice is to ensure the best possible outcome for everyone, but isn’t it a bit too far of a stretch to ignore the role of emotions? Unless you’ve lost someone personally (and thankfully I haven’t and hopefully never will), it’s hard to empathize with the family of the victim. Cold logic and rational thinking and only bring you so far in affairs of the heart, and I strongly believe that there is always room for the consideration of emotions when it comes to morality. As you said, the need for vengeance is a primal one. Only the saintliest among us can resist the urge to even think of vengeance when we are on the side that has lost someone close to us. We are only human after all.

    • Hi Leo, thanks for the comment.
      You’re right, emotion should not be discounted when talking about criminal justice. Regardless of whether or not it should be involved when deciding how to deal with crime and criminals, the fact is that emotion will always be involved and needs to be taken into consideration. Victims of crime are definitely entitled to feel angry at those that hurt them and have their injuries compensated for as much as it possible to do so, but there’s a big difference between acknowledging those emotions as legitimate and allowing them to influence how we treat criminals. While I’m sure there are exceptions, I can’t imagine the vast majority of wronged victims being very constructive in their input, and as I discussed, revenge/punishment doesn’t really do anyone any good.
      That said, the suffering of victims must be addressed and it’s one excellent feature of the modern justice system that counseling and material compensation is usually provided by the government. This service is free in Australia, though I’m not sure about other places.

  2. Thank you for your thoughts on this issue. I agree completely with your assessment. The one thing that I would add, and it’s of course a separate issue, is to ask why someone commits a crime in the first place. Mental illness, childhood trauma, etc can all strongly impact our sense of right and wrong which is probably related to one’s ability to emphasize with other human beings. If your parents taught you to devalue a particular race of people, you are probably more likely to harm that group of people, and feel justified in doing so. Such that you are right, and the law is wrong for even locking you up. I feel like many people argue from a position of us having absolutely free will, and that deciding to do evil or good is purely in our control. “Sure I was raised by a psychopath who was paranoid of the government all his life, but now that I’m an adult I have complete free will over how I react to hearing about the National Security Agency spying on its own people”. There are probably some people who are past the point of rehabilitation, at least according to our knowledge, but many violent criminals have been found to have enlarged frontal lobes, experienced childhood trauma of some sort that was undiagnosed at the time it happened, and other forms of abuse, neglect, etc. If genetics and childhood experiences act to shape how one views the world, what is the level of responsibility that we place on people who do terrible things? And if they are ill in the brain, which is an organ like many others that we would try to mend, do we not owe it to those people to try and mend them instead of isolating them? Is jail much like leper colonies?

    • Hi Swarn, happy new year! Apologies for not replying to your many previous comments, but you’re so incredibly comprehensive that I always feel they deserve a second article to respond! I’m glad you enjoyed this post – I did it based on your request. I did originally have a crack at ‘The Ethics Of… Crime and Punishment’ but it turned out the topic was a bit large for one article. I completely agree that the causes of crime are the critical question – there is always a reason for ever decision and action after all, and it brings up the whole question of free will quite strongly. I consider myself a hard-determinist in this regard, in that I see no room for free will within the tight confines of action-reaction causality. As you say, if we have literally no control over the things that contribute to our adult selves, how can we claim we control the results? Quantum physics may yet undermine this angle, but the science there is so poorly understood for now that it could go either way. Definitely a topic I enjoy and one to address in a future article!

      • It is a huge topic indeed. But this post is certainly part of what I was interested on hearing your thoughts on as I always enjoy the balance that you bring to laying out your argument.

        And yes, I am sorry for the long replies. It would be so much easier if we could have a conversation and a pint and then the time wouldn’t seem so laborious in responding. LOL

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